TMI Blog2016 (7) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... Y, JM : The appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-II, Pune dated 30-08-2013 for the assessment year 2009-10. 2. The appeal is time barred by 39 days. The assessee has filed an affidavit citing reason for delay in filing of appeal. A perusal of the same shows that the delay in filing of appeal has been attributed to the absence of assessee in India during the period when appeal was to be filed within limitation period. It is contended that the assessee was travelling to USA and returned to India on 11-01-2014. The assessee has also filed a photocopy of the passport to substantiate his contentions. As per the contentions of the assessee the limitation for filing of the appeal ended on 28-12-2013, the assessee returned to India on 11-02-2014 and after returning back to India the assessee fell ill. The appeal could be filed only after the assessee recovered from illness. After perusal of the contents of the affidavit we are satisfied that the delay in filing of appeal is not deliberate or willful. The assessee has been able to explain the reason for delay in filing of the appeal. Accordingly, the delay of 39 days in fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Income Tax Vs. Hindustan Samuh Awas Ltd. reported as 62 taxmann.com 175 (Bombay). The ld. Counsel further pointed out that the similar issue had come up before the Tribunal in assessee s own case in the immediately preceding year i.e. assessment year 2008-09, wherein the claim of the assessee for deduction u/s. 80IB(10) was rejected on similar ground. The Co-ordinate Bench of the Tribunal in ITA No. 625/PN/2012 decided on 31-07-2013 had remitted the matter back to the Assessing Officer for deciding the issue afresh after considering the additional evidence filed by the assessee. Now, the matter is pending before the Commissioner of Income Tax (Appeals). 5. On the other hand Shri Suhas S. Kulkarni representing the Department vehemently supported the findings of Commissioner of Income Tax (Appeals) in rejecting the claim of assessee u/s. 80IB(10). The ld. DR submitted that the assessee has failed to show from the records that the project was complete on or before 31-03-2009. The completion certificate issued by the PCMC is dated 30-11-2009 which is much after the due date as specified under the provisions of section 80IB(10) for claiming deduction. The ld. DR prayed for dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision nugatory? In our view, the explanation is introduced recently to put an end to a controversy, which might arise before the Assessing Officer about the date of completion. The intention of the legislature in providing explanation to fix the date of completion of a project is quite helpful when this provision is utilized in practice. In our view the explanation has introduced an unnecessarily strictness in the provision which is in the nature of exemption and not in the nature of charging. Sub-section (10) mentions that a housing project should be complete before 31.03.2008 so as to get the exemption. Completion of housing project is a physical act. It can be demonstrated on the spot and also through a certificate issued by an architect who is appointed for supervising the construction work. He is a professional who would declare that the project is complete. Unfortunately, Sub-section (10) and the explanation do not give any importance to the issuance of such Completion Certificate by the concerned architect. It gives importance only to the certificate of Municipal authority. It is common knowledge that an application for Completion Certificate submitted to the Municipal Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... percentage completion method, it was contended that it was not incumbent upon the asses see to submit the completion certificate every year and it was sufficient if it was submitted once when the ensuing project was completed. The lower authorities have denied the claim of deduction u/s 80-IB(10) of the Act for the profits of housing project for A.Y. 2009=-09 on the parity of reasoning that the completion certificate was granted by authorities effective from 4-5-2009 and therefore, the project was not complete prior to 31-3-2009. The claim of deduction was negated by the lower authorities holding that the project was not complete by 31-3-2009. The stand of the assessee has been that the assessee has been prevented by sufficient cause as far as assessment year 2008-09 was concerned producing such vital evidences as discussed and mentioned in affidavit deposed by assessee before the lower authorities. According to him, it was necessary to consider the claim of the assessee after admitting the following evidences as provided in Rule 29 of the ITAT rules 1963. (a) The certificate of the Architect of the appellant-assessee submitted to Local Authority approving the project certif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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